What makes a person a parent? Biology and adoption for sure. But, what about step parents? When does a person who is not related to a child by blood or adoption become a parent, with legal rights and responsibilities?
The law has long held that a person might be found to ‘stand in the place of a parent’ if they treat the child as a member of their family. Child support obligations, as well as custody and access rights would then be recognized.
So, for example, a woman comes into a new relationship with a child, and her new partner treats the child as a child of his or her family. Over time, the law might well decide that the partner is a step parent.
But, what if the partner doesn’t want to be a parent. And what if the mother doesn’t want the partner to be a parent either? Can they stop the law from imposing step parent status?
That is the issue in a case currently seeking leave to the Supreme Court of Canada. In Jane Doe v. Alberta, a professional woman was in a cohabiting relationship with a John Doe. She said she wanted to have a baby. He didn’t. Jane Doe decided to have a child on her own, through alternative insemination from an unknown sperm donor. A child was born. Jane Doe and John Doe want to continue their relationship, but neither of them want John to be a parent. They want to enter into a contract that says that she’s the parent, and he’s not. Jane Doe says that her parental liberty rights under section 7 of the Canadian Charter of Rights and Freedoms should allow her to do so.
But, the courts have so far said ‘no’. The trial court, and then the Alberta Court of Appeal both rejected the parental liberty argument. The Court of Appeal went further, holding that John Doe stood in the place of a parent.
Alberta family law has a clear test for determining when a person is a parent. It involves considering a range of factors to decide whether the person has “demonstrated a settled intention” to treat the child as his own. The factors all involve a consideration of the relationship between the child and the person.
How, then, does John Doe, who has clearly said that he doesn’t want to be a parent come to have ‘demonstrated a settled intention’ to treat the child as his own?
The answer, according to the Alberta Court of Appeal, is simply because he continues to live with the mother. The fact that he has decided a ‘settled intention’ to remain in a close relationship thrusts him into a parental relationship with the child.
In other words, a romantic relationship with the mother makes a father.
There must be more to being a father than having an emotional and sexual relationship with the child’s mother. Surely, the relationship between the man and the child would be relevant. But, in this case, the Court was willing to infer a relationship with the child just by virtue of living in the same house.
It may often be the case that a man in John Doe’s shoes would come to treat the child as his own, and it would be entirely appropriate for the law to call him a parent.
But, is it not equally possible for Jane Doe and John Doe to arrange their lives in a way that separates out the romantic relationship from the parenting relationship? Jane Doe wants to be the mother – and the only legal parent. She wants to retain all the legal rights and responsibilities, from decision making authority to financial support. John Doe wants this too.
The law has increasingly recognized a range of alternative families, from same sex families to three parent families. This case is asking for the recognition of another kind of alternative family structure. Jane Doe is a single mothers by choice who wishes to maintain her single status, while not foregoing her ability to have a romantic relationship.
The Supreme Court has in the past affirmed the importance of choice in intimate relationships. By hearing the case, the Court will have an opportunity to at least consider the importance of choice in Jane Doe’s parenting and romantic relationships, and the possibility that John Doe just isn’t a parent after all.
Brenda Cossman is Professor of Law at the University of Toronto. This article was initially published in the Toronto Star, May 24, 2007.
